Camilla Eva Carin Versteegh v Gerard Mikael Versteegh
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Holroyde,Lord Justice Lewison |
| Judgment Date | 10 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1050 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B6/2017/0418 |
| Date | 10 May 2018 |
[2018] EWCA Civ 1050
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(FAMILY DIVISION)
Sir Peter Singer
ZC14D01200
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lady Justice King
and
Lord Justice Holroyde
Case No: B6/2017/0418
Mr Timothy Bishop QC, Mr Terence MowschensonQC andMr Richard Sear (instructed by Payne Hicks Beach Solicitors) for the Appellant
Mr Lewis Marks QC and Ms Elizabeth Clarke (instructed by Withers LLP) for the Respondent
Hearing dates: 7 – 8 February 2018
Judgment Approved
Introduction
This is an appeal from the order of Sir Peter Singer dated 30 January 2017 by the wife Camilla Versteegh (“the wife”) in relation to her application for financial remedies against her husband Gerard Versteegh (“the husband”).
The order now challenged gave the wife approximately half the non-business assets (£51.4m) together with a 23.41% interest in a business called H Holdings, which business had been created by and was run by the husband under a trust structure. The costs to date (excluding the costs of the appeal) are in excess of £4m.
The judge gave three judgments: a substantive judgment (J1) and two supplementary judgments (J2 and J3), these latter two were in part clarification, but were predominantly concerned with the nature and form of the wife's proposed shareholding in H Holdings, together with such safeguards and protections as were capable of being put in place in order to protect her interest in the company.
Mr Bishop QC on behalf of the wife seeks a rehearing of all the issues in the case in the light of what he describes as the “profound deficiencies and errors which permeate the evaluations and exercise of discretion in the judgments”. Mr Marks QC on behalf of the husband urges the court to dismiss the appeal in its entirety.
Whilst the court must address the extensive arguments it has heard about, inter alia, the impact of a pre-marital agreement, non-matrimonial assets and the sharing principle, the main focus of the hearing has been upon (i) the judge's finding that he was unable to determine the value or future liquidity of H Holdings, the major business asset and (ii) his decision to make a so called Wells order whereby, rather than receiving a lump sum representing her interest in H Holdings, the wife received her interest in specie in the form of ordinary shares.
Background
The husband and wife are both in their 50s. Both are Swedish and were born, brought up and educated in that country. The parties married in August 1993 and have three adult children. The wedding took place in Sweden. On 27 August 1993, the day before the wedding, the wife signed a Pre-Marital Agreement (“PMA”) by which the parties committed to a separation of property regime.
The wife comes from a comfortable, middle-class background and, after completing her education, worked in Sweden for about 5 years. By the time of her marriage, she had bought a flat and owned a holiday property jointly with her sister.
The husband, in contrast, comes from a Swedish family who have, as the judge described it “enjoyed significant affluence for a number of generations”. Prior to the marriage the husband had inherited tranches of shares in family companies.
In about 1983 the husband moved to London where he bought a flat. The husband proved himself to be an astute business man and acquired a number of property and business interests, the focus of which is “slow burn” property development.
Immediately after the marriage, the wife moved from Sweden to live in London with her new husband; there they lived with their children, the wife as home maker and the husband as breadwinner until their separation in June 2014.
The business structure in brief
Mr Bishop put before the court an organogram which demonstrates complex interlocking entities. These show a variety of land and real property related activities conducted through in excess of 30 entities spread across the world. Daunting though Mr Bishop's organogram appears at first blush, in the event, only a relatively basic understanding of the husband's business operations is necessary in order to identify and thereafter address the issues between the parties.
The businesses are in large part held within a trust structure, the H Settlement, in relation to which the trustees, a trust company in Jersey called Minerva, have discretionary powers. The husband is a life tenant of the settlement. At the top of the structure sits a company called D Holdings in which the H Settlement has a 96.38% interest. The remaining 3.62% is held in a settlement in which the wife is the beneficiary (the W Settlement), the husband having settled the shares into that trust during the course of the marriage.
D Holdings in turn owns a 93.74% interest in H Holdings. (The remaining 6.26% is owned by AMW and his wife, work associates of the husband, and is not relevant for the purposes of the dispute). H Holdings is the main holding company containing around 90% of all the group's wealth.
The nature of the business is that of long term land development projects which can take many years (if ever) to come to fruition. The company has high levels of borrowing, security for which comes substantially from commercial properties held within the structure. In addition, the husband has, over time, provided the company with loans of £45m which are repayable to him, tax free. These loans will, it is accepted, substantially fund the cash part of the wife's settlement.
It can be seen therefore that it is the H Settlement that owns the assets the subject of this dispute. The husband is however the life tenant and the driving force behind H Holdings. There has been, and is, no suggestion that the trustees will not agree to the release/transfer of such assets as are required to satisfy any order of the court. The fact that the assets are within a trust structure is therefore of only marginal relevance on the facts of the case.
The court heard extensive expert evidence at trial in relation to projects within H Holdings: The first category related to two sites:
i) KF: a former industrial site of some 56 acres being developed in conjunction with a local authority, the site having been acquired as long ago as 2003.
ii) CB: a beach development in Cornwall intended to be holiday homes. The site was acquired in 2002. As of trial, the development was on hold as a result of the change in stamp duty in relation to holiday homes.
The second significant area of dispute was in relation to the land promotion side of the business. Through this arm of the business, H Holdings works with landowners to promote planning applications and facilitate sales to developers. These investments involve significant up-front expenditure and are usually ‘under water’ until planning permission is obtained. It can take 15 – 20 years before there is a profit. The valuation exercise focused specifically upon two of these land promotion businesses: ACo and CL Co.
The Parties' Positions at trial
In the early stages of the litigation the husband's stated position was that the PMA referred to above should conclusively govern the outcome of the proceedings. This would have meant that the wife would have retained assets of about £27 million held in her name against her needs, (generously assessed) at something over £22 million. The wife, in response to this early salvo by the husband, filed written statements which the judge held to be a “compound of deliberate untruths” in respect of the circumstances leading up to the signing of the PMA and her understanding of its implications. The judge found that she then ‘embroidered’ these untruths when she was challenged in cross examination [178].
By the time of the trial, the husband had moved away from his early position and now made a proposal which he felt to be fair in all the circumstances. As his offer required him to transfer money and shares to the wife to which he alone was entitled under the terms of the PMA, there was now a ‘sharing’ element to his proposed settlement.
The husband proposed that the wife should receive £38m from liquid resources. In addition she was to receive a 23.41% shareholding in H Holdings. The settlement would be made up from the majority of the net proceeds of sale of the former matrimonial home (currently held in joint names) a holiday home and a lump sum payment by the husband to the wife.
The husband's case was that this represented a fair outcome when taking into account the PMA, his contribution to non-matrimonial property and the need not to jeopardise his business.
The wife's position at trial was substantially based on the evidence of her expert Mr Bezant of FTI Consulting. She asserted that the matrimonial assets amounted in total to £278m (later adjusted to £273.5m). The wife proposed that the assets should be divided as to 42.5% to her and 57.5% to the husband. By her movement away from an equal division, the wife recognised the introduction to the marriage by the husband of non-matrimonial property. The effect of the wife's proposal would have been that she would receive £116m and the husband £157m. The wife proposed that payment should be by way of transfer of various readily transferrable assets and a balancing payment of £67m payable in 4 lump sums to be paid by the husband to her between 2016 and 2019.
In making an order substantially along the lines sought by the husband the judge decided:
i) That the wife had a full appreciation of the implications of the PMA when she signed it,
ii) That the variables it was necessary to apply in order to value the 4 major developments within H Holdings were so fickle...
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